Thayer, C. J.,
delivered the opinion of the court.
It appears from the evidence taken by the referee in this case that at the time of the execution of the deed by the appellant Benjamin Hyland to the respondent, the said parties were husband and wife, and had been such for nearly twenty years; that they had a family of children the fruits of their marriage; that the said appellant had had a former wife who had borne him several children, among whom was the appellant Amos D. Hyland, and that at the time of the execution of the deed by the said Benjamin Hyland to the said Amos D. Hyland, which was so executed November 10, 1887, a suit for a divorce was pending in said circuit court between said respondent and said Benjamin Hyland. It further appears from the evidence that the consideration for the deed from Benjamin Hyland to the respondent was a conveyance by the latter to the former of certain real property owned by her situated in the city of Corvallis, Benton county. The respondent, in order to sustain- her allegation in the complaint that the words “then to her heirs and assigns forever” were omitted through mistake in the said deed from tthe said Benjamin Hyland to her, relied upon her own [55]*55testimony, and that of several other witnesses, who testified that the said Benjamin Hyland, soon after the execution of the deed, stated on a number of occasions that he had conveyed the property in question to the respondent for life, and then to her heirs and assigns. I think the evidence upon that point, in the absence of any conflicting testimony, was sufficient to establish the fact alleged. The deed itself shows upon its face that the said Benjamin Hyland intended to convey his entire interest in the said property; otherwise he would not have been likely to have inserted the covenants therein, whereby he covenanted to and with the said respondent, her heirs and assigns, that he was the owner in fee simple of said premises, that they were free from all incumbrances, and that he would warrant and defend the same from all lawful claims whatsoever. The appellant’s counsel at the hearing did not seem to claim that the evidence was insufficient to prove the fact that such mistake was made in the execution of said deed to respondent; and the evidence on the part of the respondent upon the point was more convincing as it was not controverted by the appellant Benjamin Hyland, who was evidently well acquainted with all the facts connected with the affair. Said counsel, however, did rely upon the allegations in the answer that the appellant Amos D. Hyland purchased the property in question from Benjamin Hyland in good faith and without notice of any such mistake having been made, and upon the insufficiency of the respondent’s complaint in the suit. Said counsel, in claiming that Amos D. Hyland was a purchaser in good faith without notice, is confronted with a difficulty in regard to the sufficiency of his answer upon that point. A defendant who interposes a plea or answer of that character must state therein, as was said by Baldwin, J., in Boone v. Childs, 35 U. S. R. p. 211: “The deed of purchase, the date, parties and contents briefly, that the vendor was seized in fee, and in possession; the consideration must be stated with a distinct averment that it was bona fide and truly paid, independently of the [56]*56recital in the deed. Notice must be denied previous to, and down to, the time of paying the money, and the delivery of the deed; and if notice is specially charged, the denial must be of all the circums'tances referred to, from which notice can be inferred; and the answer or plea shows how the grantor acquired title. * * * Such is the case which must be stated, to give a defendant the benefit of an answer or plea of an innocent purchaser without notice; the case stated must be made out; evidence will not be permitted to be given of any other matter not set out.”
Said answer materially fails to contain the several requirements above specified, and the evidence comes far short of proving that said appellant Amos. D. Hyland was such innocent purchaser of the property. He testified in the suit, in answer to the interrogatory to state when and under what circumstances and where he purchased the 170 acres of land, as follows: “On the tenth day of November, 1887, at the court-house; I went to find father’s attorney to have him make a deed to my brother, B. S. Hyland, and have him, if the attorney thought best, to take care of him his life-time. When I came back to the court-house father had made the deed to me and said he would rather stay with me. I agreed to take care of him his life-time for the land. ”
In answer to another interrogatory, to state what the facts were about the deed being made, executed and delivered to him without any value or valuable consideration, he answered:
“The deed was made to me before I knew it. When I found it out we made an agreement that I was to take care of him his life-time for the land. I accepted of the deed with that understanding, which I have done to the best of my ability. ”
This substantially is all the evidence given by said appellant in regard to the affair and of the consideration paid or agreed to be paid by him for the land. He testified that he had no knowledge prior to his coming to Eugene [57]*57City upon that occasion oí any deed having been executed by Benjamin Hyland to the respondent, nor of the alleged mistake ; but the circumstances under which the deed was made and delivered to him were calculated to cast suspicion upon the bona ftdes of the transaction. He knew that a suit for a divorce had been commenced by the respondenÍ against Benjamin Hyland, which was then pending, and that it would necessarily affect any title the latter had in the property. He received the deed to the land more as a gift than as a purchase, and was at the time evidently contriving with Benjamin Hyland a mode by which the latter could divest himself of his apparent title to the remainder in the land. He made no advancement as a consideration for the deed, nor any agreement as an inducement to its execution, though he testified that he promised when the deed was delivered to him that he would take care of his father during the latter’s life-time for the land. Whether that would have been an adequate consideration for the property does not appear. It would be absurd, however, to hold that the transaction constituted said Amos D. Hyland a purchaser in good faith, and contrary to the uniform decisions of this court upon that question. Musgrove v. Bonsor, 5 Or. 313; Richards v. Snyder & Crews, 11 Or. 501; Wood v. Rayburn, 18 Or. 3.
The main ground upon which the appellant’s counsel appeared to rely at the hearing was the alleged insufficiency of the respondent’s complaint to entitle her to a decree of reformation of the said deed; and I think it altogether the strongest point in his case. Attorneys who prepare complaints to reform written instruments are too apt to state conclusions instead of facts. They should set out the transaction as it occurred and not the legal effect thereof. The complaint in this case should have stated what the parties mutually agreed to do in regard to the exchange of their lands, and not the result of what they did do.
If the terms of th&original agreement between the par ties to the transaction involved herein and their attempt [58]
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Thayer, C. J.,
delivered the opinion of the court.
It appears from the evidence taken by the referee in this case that at the time of the execution of the deed by the appellant Benjamin Hyland to the respondent, the said parties were husband and wife, and had been such for nearly twenty years; that they had a family of children the fruits of their marriage; that the said appellant had had a former wife who had borne him several children, among whom was the appellant Amos D. Hyland, and that at the time of the execution of the deed by the said Benjamin Hyland to the said Amos D. Hyland, which was so executed November 10, 1887, a suit for a divorce was pending in said circuit court between said respondent and said Benjamin Hyland. It further appears from the evidence that the consideration for the deed from Benjamin Hyland to the respondent was a conveyance by the latter to the former of certain real property owned by her situated in the city of Corvallis, Benton county. The respondent, in order to sustain- her allegation in the complaint that the words “then to her heirs and assigns forever” were omitted through mistake in the said deed from tthe said Benjamin Hyland to her, relied upon her own [55]*55testimony, and that of several other witnesses, who testified that the said Benjamin Hyland, soon after the execution of the deed, stated on a number of occasions that he had conveyed the property in question to the respondent for life, and then to her heirs and assigns. I think the evidence upon that point, in the absence of any conflicting testimony, was sufficient to establish the fact alleged. The deed itself shows upon its face that the said Benjamin Hyland intended to convey his entire interest in the said property; otherwise he would not have been likely to have inserted the covenants therein, whereby he covenanted to and with the said respondent, her heirs and assigns, that he was the owner in fee simple of said premises, that they were free from all incumbrances, and that he would warrant and defend the same from all lawful claims whatsoever. The appellant’s counsel at the hearing did not seem to claim that the evidence was insufficient to prove the fact that such mistake was made in the execution of said deed to respondent; and the evidence on the part of the respondent upon the point was more convincing as it was not controverted by the appellant Benjamin Hyland, who was evidently well acquainted with all the facts connected with the affair. Said counsel, however, did rely upon the allegations in the answer that the appellant Amos D. Hyland purchased the property in question from Benjamin Hyland in good faith and without notice of any such mistake having been made, and upon the insufficiency of the respondent’s complaint in the suit. Said counsel, in claiming that Amos D. Hyland was a purchaser in good faith without notice, is confronted with a difficulty in regard to the sufficiency of his answer upon that point. A defendant who interposes a plea or answer of that character must state therein, as was said by Baldwin, J., in Boone v. Childs, 35 U. S. R. p. 211: “The deed of purchase, the date, parties and contents briefly, that the vendor was seized in fee, and in possession; the consideration must be stated with a distinct averment that it was bona fide and truly paid, independently of the [56]*56recital in the deed. Notice must be denied previous to, and down to, the time of paying the money, and the delivery of the deed; and if notice is specially charged, the denial must be of all the circums'tances referred to, from which notice can be inferred; and the answer or plea shows how the grantor acquired title. * * * Such is the case which must be stated, to give a defendant the benefit of an answer or plea of an innocent purchaser without notice; the case stated must be made out; evidence will not be permitted to be given of any other matter not set out.”
Said answer materially fails to contain the several requirements above specified, and the evidence comes far short of proving that said appellant Amos. D. Hyland was such innocent purchaser of the property. He testified in the suit, in answer to the interrogatory to state when and under what circumstances and where he purchased the 170 acres of land, as follows: “On the tenth day of November, 1887, at the court-house; I went to find father’s attorney to have him make a deed to my brother, B. S. Hyland, and have him, if the attorney thought best, to take care of him his life-time. When I came back to the court-house father had made the deed to me and said he would rather stay with me. I agreed to take care of him his life-time for the land. ”
In answer to another interrogatory, to state what the facts were about the deed being made, executed and delivered to him without any value or valuable consideration, he answered:
“The deed was made to me before I knew it. When I found it out we made an agreement that I was to take care of him his life-time for the land. I accepted of the deed with that understanding, which I have done to the best of my ability. ”
This substantially is all the evidence given by said appellant in regard to the affair and of the consideration paid or agreed to be paid by him for the land. He testified that he had no knowledge prior to his coming to Eugene [57]*57City upon that occasion oí any deed having been executed by Benjamin Hyland to the respondent, nor of the alleged mistake ; but the circumstances under which the deed was made and delivered to him were calculated to cast suspicion upon the bona ftdes of the transaction. He knew that a suit for a divorce had been commenced by the respondenÍ against Benjamin Hyland, which was then pending, and that it would necessarily affect any title the latter had in the property. He received the deed to the land more as a gift than as a purchase, and was at the time evidently contriving with Benjamin Hyland a mode by which the latter could divest himself of his apparent title to the remainder in the land. He made no advancement as a consideration for the deed, nor any agreement as an inducement to its execution, though he testified that he promised when the deed was delivered to him that he would take care of his father during the latter’s life-time for the land. Whether that would have been an adequate consideration for the property does not appear. It would be absurd, however, to hold that the transaction constituted said Amos D. Hyland a purchaser in good faith, and contrary to the uniform decisions of this court upon that question. Musgrove v. Bonsor, 5 Or. 313; Richards v. Snyder & Crews, 11 Or. 501; Wood v. Rayburn, 18 Or. 3.
The main ground upon which the appellant’s counsel appeared to rely at the hearing was the alleged insufficiency of the respondent’s complaint to entitle her to a decree of reformation of the said deed; and I think it altogether the strongest point in his case. Attorneys who prepare complaints to reform written instruments are too apt to state conclusions instead of facts. They should set out the transaction as it occurred and not the legal effect thereof. The complaint in this case should have stated what the parties mutually agreed to do in regard to the exchange of their lands, and not the result of what they did do.
If the terms of th&original agreement between the par ties to the transaction involved herein and their attempt [58]*58to effectuate it had been set out, the court could have readily discovered from the facts, if truly stated, whether or not there was such a mistake as alleged and in what particular it consisted. Instead of doing that, however, the respondent’s counsel contented himself by alleging the promise and agreement made by Benjamin Hyland to make, execute and deliver to the respondent a deed com veying to her said' premises during her natural life, and then to her heirs and assigns forever, and that he executed and delivered to her a deed of conveyance to said prem ises, but said words “and then to her heirs and assigns forever” were by mutual mistake omitted therefrom. Such a mode of alleging a cause of suit is highly objectionable; the statement is too general, and if the case had come here upon demurrer to the pleading- I should have been in favor of sustaining the demurrer. The objection, however, is made at hearing in this court, and it seems to me that under such circumstances every reasonable inference should be given in favor of the complaint that can be drawn therefrom. It is not a case of a defective cause of suit, but of a defective statement of cause of suit. If the complaint had lacked some material allegation, the defect would be fatal and could be taken advantage of without interposing a demurrer; but where the defect consists in alleging evidence of facts, or conclusions of facts instead of the facts themselves, it will be waived unless a demurrer is taken to the pleading. The fault of the com plaint in this case is of the latter character.
The decree appealed from will .therefore be affirmed.